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Flores v. United States

United States District Court, W.D. Kentucky, Louisville

April 24, 2017

RAMON F. FLORES MOVANT/DEFENDANT
v.
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge United States District Court

         I. Introduction

         In June 2010, a federal grand jury indicted Ramon F. Flores and his co-defendants for conspiring to “possess with the intent to distribute and distribute 5 kilograms or more of a mixture or substance containing cocaine” (Count I). Superseding Indictment 1, ECF No. 156. After Flores proceeded to trial, a jury convicted him of Count I. Verdict 1, ECF No. 699. He was sentenced to imprisonment for 360 months, a supervised release term of five years, and a special assessment of $100.00. Am. J. 3-6, ECF No. 883.

         The United States Court of Appeals for the Sixth Circuit affirmed his conviction. Order 9/29/2014 5, ECF No. 968. Flores then petitioned the United States Supreme Court for a writ of certiorari. Notice Pet. Cert. 1, ECF No. 987. The Court denied Flores a writ of certiorari. Denial Cert. 1, ECF No. 1003.

         On February 18, 2016, Flores moved pro se to vacate his sentence under 28 U.S.C. § 2255. Mot. Vacate 1, ECF No. 1048. Two days later, with the assistance of counsel, he filed an amended motion to vacate his sentence under § 2255. Am. Mot. Vacate 1, ECF No. 1051. The United States responded to Flores's original and amended motions to vacate. Resp. Opp. Mot. Vacate 1, ECF No. 1062. Flores replied. Reply 1, ECF No. 1064.

         Magistrate Judge Dave Whalin then ordered the United States to file a supplemental response addressing two ineffective assistance of counsel claims asserted in Flores's original, pro se motion to vacate his sentence under § 2255. Order 10/04/2016 1, ECF No. 1069. The United States accordingly filed a supplemental response. Suppl. Resp. Opp. Mot. Vacate 1, ECF No. 1073. Flores replied to the United States' supplemental response. Reply Suppl. Resp. 1, ECF No. 1077.

         On February 6, 2017, the magistrate judge issued a report and recommendation on Flores's motions to vacate his sentence (“the February 2017 report and recommendation”). R. & R. 1, ECF No. 1080. In the February 2017 report and recommendation, the magistrate judge recommended that this Court deny Flores's original motion to vacate and amended motion to vacate the sentence. Id. He also recommended that this Court deny issuance of a certificate of appealability. Id.

         Flores filed three objections to the February 2017 report and recommendation. Obj. R. & R., ECF No. 1081. For the reasons stated below, the court will overrule Flores's objections to the February 2017 report and recommendation.

         II. Standard of Review

         The Court makes a de novo determination of the proposed findings or recommendations to which Flores objects. See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3).

         III. Discussion

         Flores objects to three determinations made by the magistrate judge in the February 2017 report and recommendation. First, Flores objects to the magistrate judge's recommendation that his ineffective assistance of counsel claims be denied. Obj. R. & R. 3-4, ECF No 1081. Flores contends that his defense counsel's decision to wait two days before his trial date to move to exclude untimely disclosed government evidence, his defense counsel's failure to keep him informed of developments in his case, the discrepancy between the number of documents submitted by the government and those received by defense counsel, and defense counsel's question to the presiding judge, “Am I required to challenge it before trial?” contradict the magistrate judge's determination that his trial counsel's allegedly deficient performance did not prejudice him. Id.

         In his original motion to vacate his sentence, Flores also states:

In the instant case defense counsel was under a duty to launch a full investigation in order to locate all possible data that would have allowed him to present to sentencing court the results of his investigation and research. If the failure in any way was caused by defense counsel not following that line of investigation, or not visiting his ...

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